Thursday, March 17, 2011

Last month the St. Louis Art Museum (SLAM) sued the US government to claim ownership of the ancient mask of Ka-Nefer-Nefer. The US government yesterday sued to forfeit the mask.

Fearing that federal authorities could seize the Egyptian mask of Ka-Nefer-Nefer, SLAM filed a preemptive complaint on February 15 to have a federal district court declare that the mask is the museum’s property. US Attorney Richard Callahan responded on March 16 by initiating a lawsuit against the mummy mask.

In a complaint titled United States v. Mask of Ka-Nefer-Nefer, Callahan petitions a Missouri federal court for forfeiture of the ancient object pursuant to 19 U.S.C. § 1595a. That statute permits officials to seize and forfeit items that have been illegally stolen, smuggled, or clandestinely imported into the United States. Callahan also asks that a restraining order be placed on the mask so that it remains available while the court case progresses.

In its petition for declaratory judgment, SLAM argues the following points:
• The museum conducted thorough due diligence before purchasing the mask on April 3, 1998.

• “The Museum’s investigation revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”

• “The United States government cannot show probable cause the Mask was ‘stolen, smuggled, or clandestinely imported or introduced’ into the United States.’” Therefore, the mask cannot be seized or forfeited under 19 U.S.C. § 1595a.

• If the mask was stolen, the United States government is barred by the statute of limitations from seizing or forfeiting it because federal authorities had information more than five years ago “sufficient to discover the alleged theft of the Mask from Egypt.”

It should be noted that SLAM’s court complaint is hesitant to admit that the mask is stolen property. At best SLAM remarks that the mask may have been “allegedly stolen.”

The US Attorney’s complaint, by contrast, argues a more forceful claim, detailing why the mask is known to have been stolen. An excerpt from the government’s complaint is reproduced below:

In 1952, Egyptian archaeologist Mohamed Zakaria Goneim, working for the Egyptian Antiquities Service, excavated the mat burial of a 19th Dynasty noblewoman named Ka-Nafer-Nafer inside the funerary enclosure of the 3rd Dynasty king Sekhemket at Saqqara. The Mask was placed in storage in the Sekhemkhet magazine, also located at Saqqara, where it was registered as the property of the Egyptian Antiquities Service and where it remained until 1959. In July of 1959, the Mask and four other items from Saqqara were packed for shipping to the Egyptian Museum in Cairo in preparation for an exhibit in Tokyo. The packing list identified the Mask as registration number 6119 and packed in box number six. The Mask was received by police guards at the Egyptian Museum in Cairo on July 28, 1959. Ultimately, the Mask did not travel to Tokyo for the exhibit. The Mask remained in Cairo, Egypt until 1962 at which time the Mask was transferred back to Saqqara. In 1966, the Mask and other objects from the same burial assemblage were removed from packaging in Saqqara and given to the Egyptian Antiquities Organization Restoration Lab located in Cairo in preparation for future display. The Mask traveled to Cairo from Saqqara in box number fifty-four. This was the last documented location of the Mask in Egypt. In 1973, the Egyptian Museum in Cairo took an inventory of all the objects that traveled in 1966 from Saqqara to Cairo in box number fifty-four. It was discovered at that time that the Mask was missing. The register did not document that the Mask was sold or given to a private party during the time frame of 1966 to 1973. In or around 2006, the Egyptian Supreme Council of Antiquities became aware that the Mask was accessioned by the Saint Louis Art Museum located in Saint Louis, Missouri for approximately $500,000.00 in 1998. Subsequently, the Secretary General for the Egyptian Supreme Council of Antiquities sent letters and documentation to the Saint Louis Art Museum detailing the history of the Mask and requesting its return to Egypt. To date, the Saint Louis Art Museum has refused to return the Mask.

The US Attorney’s office describes the mask’s source of discovery and its subsequent provenance. Should these claims be proven by the government, SLAM may find it difficult to maintain its dual and nuanced positions that either the mask may not have been stolen, or that the museum's investigation “revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”

If evidence of the mask’s stolen character is proven by the government, SLAM might also have to revisit its February 14, 2006 position, reproduced in the museum’s legal complaint, “expressing its willingness to return the Mask to Egyptian authorities upon verifiable proof the Mask was stolen.” Any thought about returning the mask may have vanished, however, now that SLAM has argued that the statute of limitations forbids authorities from seizing or forfeiting the mask.

Knowing the statute of limitations claim asserted by SLAM, the US Attorney’s recent legal action does not address the issue at all. SLAM’s court petition points to episodes where federal officials directly or indirectly possessed knowledge to take action to investigate the possible illicit provenance of the mask. It remains to be seen how the federal government will take on this argument when SLAM inevitably raises the claim in its response to the government’s forfeiture action.

Saturday, March 12, 2011

Illegal antiquities trafficking is a global business, linked to major transnational crimes such as money laundering. Additionally, cultural property crimes target humanity’s heritage and spirit. In order to successfully tackle crimes against cultural heritage, federal officials must pursue a strategy of investigation and prosecution.

The current policy of seizure and return does not go far enough. To seize a stolen or smuggled artifact at the American border and return it to its country of origin only serves to repatriate the object. Its confiscation and return does little to deter antiquities trafficking since there is minimal consequence to the perpetrators or accomplices. Building legal cases that lead to arrests and prosecutions would provide both specific deterrence and general deterrence.

The seize and return policy maintained by Department of Homeland Security (DHS) recently came into public view when Customs and Border Protection (CPB) and DHS investigators seized two Chinese artifacts illegally crossing America's border at Newark Liberty International Airport around March 3. Eight days later DHS announced the return of fourteen cultural objects to China, many obtained as a result of an enforcement initiative titled Operation Great Wall. The objects repatriated apparently included one of the artifacts seized at Newark Airport, specifically a Tang Dynasty horse. At least four other Chinese cultural objects that were seized in the New York metropolitan area over the past year were returned to China as well.

Typically when law enforcement officials seize the fruits of a crime or contraband they secure the evidence in anticipation of a prosecution. The return of the Tang Dynasty horse sculpture only a few days after federal officials seized it illustrates how smuggled cultural objects are not treated as criminal case evidence. That is to be expected when the primary mission of DHS is to seize and return, not to investigate and prosecute.

US Customs Director Robert Perez articulated this seize and return policy, declaring that federal authorities are "dedicated to intercepting [cultural] items and ensuring their safe return to their rightful owners." DHS’s news release about the repatriation of Chinese artifacts supports this view, highlighting that “2,300 artifacts have been returned to 18 countries since 2007.” While DHS touts the number of seizures and returns of cultural property, its press statement does not boast of any prosecutions or convictions against looters, smugglers, fences, or receivers of illegally stolen or trafficked cultural heritage.

Combating crimes against cultural heritage requires authorities to investigate and prosecute trafficking rings. Effective law enforcement is characterized by thoughtful investigation, careful handling of physical evidence, and assembly of evidence for review and use by prosecutors. While seizing and repatriating illegally smuggled artifacts serves some purpose to curb antiquities trafficking, federal officials cannot be credited with performing a thorough job if this remains the sole accomplishment.

Immigrations and Customs Enforcement investigators and Customs and Border Protection agents are skilled law enforcement officers who are capable of combating antiquities trafficking effectively. We need to call on DHS policymakers to directly engage illegal antiquities networks by adopting a policy of investigation and prosecution that enhances the existing policy of seizure and repatriation.

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"Rick St. Hilaire, who has become an authority on cultural heritage law, received the International Law Section’s 2014 Daniel Webster International Lawyer of the Year award at an Oct. 30 reception in Manchester, hosted by Sheehan Phinney Bass + Green." - NH Bar News, November 19, 2014

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